TMI Blog1973 (6) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... r was being driven by accused No. 1 and accused Nos. 2 and 3 were sitting on the rear seat. The police officers chased the car and intercepted it near Gandhi Market which is opposite Matunga Police Station. The car was taken to the Police station. Some packages and trunks were found in the car, on the opening of which 2,937 brand new wrist watches of foreign make and 46 watch straps were found. These articles were seized under a panchanama. 3. It appears that during the course of the seizure the police officers thought that the wrist watches and watch straps might after all be smuggled goods. Mokashi, therefore, contacted officers of the Central Excise and Customs Department on telephone and informed them that watches and watch straps suspected to be smuggled goods were at the police station. These officers came to the police station. The police officers handed over the wrist watches and the watch straps to the officers of the Central Excise and Customs Department and they again formally seized the articles. They also took search of the house of accused No. 1 and seized some empty tins and cloth bags found therein. The officers of the Central Excise and Customs Department also r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 also came there and they were also asked to accompany the Police Officers to the police station in the same car. The articles were accordingly taken in the car. Accused No. 1 drove the car to the Police station with accused Nos. 2 and 3 in the car. Accused No. 1 thus denied his possession of the wrist watches and watch straps and the prosecution story that while these articles were being carried in the car the police officers chased the car and intercepted it. 5. The defence of accused No. 2 was that on the day in question at about 3-30 a.m., he was moving near Sion Circle to meet one Vanechand Jain. Noticing a crowd in a lane near Sion Circle, he went there and found accused No. 3 in the crowd. Accused No. 3 is the uncle of accused No. 2. The police officers questioned him and made him sit in the car. He was accordingly taken to the Police Station. He thus denied possession of the contraband articles. 6. The defence of accused No. 3 was that the car in question belongs to him and he had given it to accused No. 1 on 16th May 1968 as he is his friend and he wanted it to take his daughter to Sion Hospital for treatment. He was expecting the car back at 8 a.m. on the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in India under an import licence and the present consignment of watches was not to be found in that extract. From this extract, the prosecution wanted to show that the watches and watch straps in question were smuggled articles. In order to prove that the accused had knowledge that the goods in question were smuggled, the prosecution relied upon the statement of accused No. 1 that he asked Chhogalal as to the contents of the bags which were kept by Chhogalal and of his being told that they contained wrist watches. In order to fasten similar knowledge to accused Nos. 2 and 3, the prosecution relied upon their conduct that they were in the car in which the goods were transported. 8. In regard to the first point, whether the three accused were found in possession of the wrist watches and watch straps, in as much as they were seen to carry these articles in the car in which they were travelling, Kulkarni and Mokashi no dobut supported the version of the prosecution, but the two panchas, Pardiwala and Multani, did not support that version. On the other hand, they supported the defence version. According to them, they were at Sion Circle. They saw goods lying on footpath in one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m were included in the above statistics. Similarly, he did not know whether watches imported as part of a passenger's baggage were included in the statistics. The learned Presidency Magistrate accordingly held that this piece of evidence adduced by the prosecution to prove that the goods in question were smuggled, was not of a conclusive nature. In regard to the evidence of Hebbar and other Officers of the Customs Department that the watches were brand new of foreign make and in huge quantity, the learned Presidency Magistrate held that these circumstances alone were not sufficient to lead to the inference that they were smuggled. The learned Presidency Magistrate accordingly held that the prosecution had failed to prove that the goods in question were smuggled. Finally, the learned Presidency Magistrate held that, even if possession of the goods by the accused had been proved and further that they were smuggled goods, there was no evidence to show that the accused had knowledge that they were smuggled goods. 10. In short, the learned Presidency Magistrate held that the prosecution had failed to prove possession of the wrist watches and watch straps by the accused. The prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused No. 1 and accused Nos. 2 and 3 were sitting on the rear seat. The Police Officers chased the car and intercepted it near Gandhi Market. The car was taken to the Police station and searched. If this evidence is believed, it would undoubtedly show that the three accused were in possession of the goods in question. However, the evidence of the two panchas is that some goods were lying on the footpath in a lane near Sion Circle and the Police Officers put these goods in the car in question and made the accused sit in the car and drive it to the Police Station. If this version, which is consistent with the defence, is believed then it would not prove the possession by the accused of the goods in question. It may be noted that in the panchanama (Ex.'H') of the seizure of the goods at the Police Station all that has been mentioned is that the panchas were called by Mokashi, Kulkarni and Patil of Matunga Police station in the compound of the Police station; the panchas saw motor car No. MRW-7631 and the three accused were inside the car. The story has not been given out there that the police were waiting at Sion Circle and on seeing the car, they chased it and intercepted it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing him in regard to those articles. There would be nothing unnatural in their further taking accused No. 1 to the Police Station along with the goods. The car was parked near the house of accused No. 1. It belonged to accused No. 3 and accused No. 2 is his nephew. As the car in which the goods were expected to be transported belonged to accused No.3 and accused No. 2 is his relative, there was nothing unnatural if the police officers had taken accused Nos. 2 and 3 also in the car to the Police Station. There is thus nothing unnatural in the story given out by the two panchas. In regard to the absence of the recitals in the panchanama of the story that the goods were found lying on the footpath near the house of accused No. 1 and were placed by the Police Officers in the car, that omission is neither here nor there, because even the version of the prosecution is not to be found there, viz. that the police party was waiting at Sion Circle and had chased and intercepted the car near the Gandhi market. All that was stated in the panchanama was that the panchas were called to the police station and when they saw the car, the three accused were sitting inside the car and further that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the scope of an appeal against acquittal. The view expressed there was that although the appellate Court has full powers to review the evidence upon which the order of acquittal is founded, yet the appellate Court should bear in mind the fact that the trial Court had the benefit of seeing the witnesses in the witness box and the presumption of innocene is not weakend by the order of acquittal. If two reasonable conclusions can be reached on the basis of the evidence of record, the appellate Court should not disturb the finding of the trial Court. Having regard to these decisions and the fact that the trial Court has given cogent reasons for preferring the evidence of the panch witnesses to that of the police officers, this Court would be slow to depart from the conclusion arrived at by the learned Presidency Magistrate that the version of the prosecution cannot be accepted and the version of the defence must be true, and, therefore, the possession of the goods by the accused cannot be said to have been proved. Wednesday, 13th June, 1973. 16. There are also present in the case a few circumstances which lend support to the above conclusion of the trial Court. As I have sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e panchanama Ex. 'H' that the version of the incident as given out by the Police Officers was not to be found in that panchanama. There was, therefore, the necessity to collect more evidence as to what was the true version of the incident. Police Officers Kulkarni and Mokashi do not also appear to be truthful witnesses, because their evidence is that they had contacted the officers of the Customs Department at about 10 a.m. and these officers arrived at the Police Station at about 11 a.m. Hebbar, however, has stated that it was at about 2 p.m. that he received information from Matunga Police Station and he had reached the Police Station at about 2.15 p.m. This also appears to be natural, because the Police, in the meantime, had seized the goods and prepared a panchanama of the seizure. If they had, immediately after opening the packages and seeing brand new wrist watches contained therein thought that these were smuggled goods. It was not necessary for them to do anything in the matter such as preparing a detailed panchanama of the seizure of the goods and they could have straightway handed over the matter to the Officers of the Customs Department, because Kulkarni has admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment when they thought that they may, after all, be smuggled goods and the matter should be proceeded with by the Customs Department. But initially, as the evidence shows, the seizure was effected by the Police Officers under the impression that the goods were stolen. In Gian Chand v. State of Punjab, 1983 (13) E.L.T. 1365 (S.C.) = AIR 1962 Supreme Court 496, the meaning of the words seized under this Act was explained. It is true that that was a case under the Sea Customs Act (1878) but Section 178A in that Act is in similar terms as Section 123 of the Customs Act, 1962. In that case the police had seized gold from the accused, who were later prosecuted under Sections 411 and 414 of the Indian Penal Code. This charge of receiving stolen property preferred against the accused was not proceeded with and the case was dropped. In the meanwhile, the Assistant Collector of Customs made an application to the Court of the Magistrate for delivery of the gold bars to the Customs Authorities and they were delivered to those authorities accordingly. The question was whether the goods handed over to the Customs Authorities under section 180 of the Sea Customs Act were goods seized under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption can arise in regard to the markings, unless there is evidence to show that those markings were made by a particular company in the ordinary course of business. A Division Bench of the Gujarat High Court has also taken a similar view in Asstt. Collector of Customs, Baroda, v. M. Ibrahim Pirjada, 1970 Criminal Law Journal, 1305. There, the Gujarat High Court has held that mere markings cannot be taken as proof of the fact of foreign origin of the goods as such markings and labels would be hearsay evidence. With respect, I agree with the above view. 20. Another circumstance deposed to by Hebbar is that the import of foreign watches and watch straps is heavily restricted and prohibited and because the watches were found in huge quantity, they must be smuggled goods. Although there was restriction on the import of watches, their import was not totally prohibited, because under clause 3 of Import (Control) Order, 1955 watches could be imported under a licence. Mr. Kamble relied upon a stray observation in Jamatraj v. State of Maharashtra, A.I.R. 1968 Supreme Court 178, that in view of the gap of time between the Promulgation of the Import (Control) Order, 1955 and the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this inference cannot be ruled out, the circumstance that the watches in huge quantity were found cannot lead to the only conclusion that they were smuggled. 21. The evidence of Hebber is, therefore, of no assistance to the prosecution to establish that the goods in question were smuggled. 22. Turning to the evidence of Nello, he produced an extract prepared by him of the monthly statistics of the foreign trade of India published by Government of India, Department of Commerce, Intelligence and Statistics, Calcutta, for the period from 1st April 1964 to 31st March, 1970. According to the witness, this extract contained an exhaustive list of all the watches imported into India under an import licence during the above period and the consignment of the watches in question is not included in this extract. The prosecution wants the Court to draw an inference from this circumstance that the watches in question were smuggled goods. The learned Presidency Magistrate has held that this document is not admissible in evidence and it has not been admitted. 23. The learned Presidency Magistrate has held that the extract neither falls within the definition of public document'' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packages contained watches and as Chhogalal was dealing in ghee and not in watches, he could also know that those must be smuggled watches. 26. Mr. Desai, the learned Counsel for accused No. 1 argued that the prosecution is not entitled to rely on a part of the statement of accused No. 1 which is favourable to it. Either it has to rely upon the whole statement of accused No. 1 or not to rely on it at all. In this connection, he referred me to two decisions of the Supreme Court in Hanumant v. State of M.P., AIR 1952. Supreme Court 343, and Palvinder Kaur v. State of Punjab, AIR 1952 Supreme Court 354. With respect, I hold that the prosecution is not entitled to rely upon only a part of the statement or accused No. 1 which is favourable to it. If it wants to rely upon that statement, it has to rely upon the whole of that statement and if the whole statement is relied upon, no possession of accused No.1 of the goods in question can be said to have been proved. Again, the most that accused No. 1 knew was that there were wrist watches in the packages, but there is nothing in his statement to show that he also knew that they were smuggled goods. From the mere fact that Chhogalal was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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